UNITED STATES DEPARTMENT OF AGRICULTURE (U.S.D.A.)
IN RE: CRAIG LESSER AND MARILYN LESSER
52 Agric. Dec. 155 (1993)
Respondents, Craig and Marilyn Lesser, were respectively, president and vice-president of LSR Industries, a Wisconsin corporation that was in the business of breeding and selling rabbits to research institutions, and licensed dealers under the Animal Welfare Act. The ALJ issued an Initial Decision and Order assessing civil penalties of $9,250, and suspending Respondents' license for 30 days, after respondents interfered with APHIS inspections of their facilities and failed to maintain their facilities in accordance with the standards involving housing, sanitation, cleaning, ventilation, storage of food and bedding, and lighting. However, the Judicial Officer increased the civil penalties of $9,250 assessed by the ALJ by $500, because of sanitation and waste violations, for which the ALJ assessed no civil penalties. Since Respondents did not raise any issue before the ALJ as to whether warrantless inspections are unreasonable under the Fourth Amendment, they cannot raise the issue on appeal. The Fourth Amendment is not violated by warrantless inspections under this regulatory statute.
Initial decision issued by James W. Hunt, Administrative Law Judge. Decision and order issued by Donald A. Campbell, Judicial Officer.
delivered the opinion of the court.
Opinion of the Court:
This is a disciplinary proceeding under the Animal Welfare Act, as amended (7 U.S.C. s 2131 et seq.), and the regulations and standards issued thereunder (9 C.F.R. s 1.1 et seq.). On March 23, 1992, Administrative Law Judge James W. Hunt (ALJ) issued an Initial Decision and Order assessing civil penalties of $9,250, and suspending Respondents' license for 30 days, and thereafter until they are in full compliance with the Act, regulations and standards. Respondents were ordered to cease and desist from interfering with or refusing APHIS inspections of their facilities, and failing to maintain their facilities in accordance with the standards involving housing, sanitation, cleaning, ventilation, storage of food and bedding, and lighting.
**2 On April 21, 1992, Respondents appealed to the Judicial Officer, to whom *156 final administrative authority has been delegated to decide the Department's cases subject to 5 U.S.C. ss 556 and 557 (7 C.F.R. s 2.35). [FNa1] On June 24, 1992, Complainant responded to Respondents' Appeal, and, in effect, filed a Cross-Appeal seeking an additional $500 in civil penalties. The case was referred to the Judicial Officer for decision on June 29, 1992.
Based upon a careful consideration of the record, the Initial Decision and Order is adopted as the final Decision and Order, with deletions shown by dots, and with a few trivial editorial changes not specified. The civil penalties are increased by $500. Additional conclusions by the Judicial Officer follow the ALJ's conclusions.
ADMINISTRATIVE LAW JUDGE'S INITIAL DECISION
This is a disciplinary proceeding under the Animal Welfare Act, as amended, 7 U.S.C. s 2131 et seq., and the Regulations issued thereunder, 9 C.F.R. s 1.1 et seq., instituted by a complaint filed on October 19, 1990, and an amended complaint, filed on March 6, 1991, by the Administrator, Animal and Plant Health Inspection Service (APHIS), United States Department of Agriculture. The complaint alleges that respondents wilfully violated the Act and Regulations. Respondents filed an answer to the complaints and a hearing was held on November 13 and 14, 1991, in Milwaukee, Wisconsin. Complainant was represented by Colleen A. Carroll, Esq. Respondents were represented by Curry First, Esq.
Respondents, Craig and Marilyn Lesser, are, respectively, president and vice-president of LSR Industries, a Wisconsin corporation owned by respondents. LSR Industries is in the business of breeding and selling rabbits to research institutions. Respondents are licensed as dealers under the *157 Animal Welfare Act.
Craig Lesser started the business in 1974 as a teenager. The business now sells from 15,000 to 20,000 rabbits a year to customers across the United States. Its rabbits have a good reputation as being "clean."
The existing buildings where the rabbits are kept were built in 1976 and remodeled in 1982. The Lessers had tried to build a new stainless steel air-conditioned facility but were unable to raise the required capital. They have now invested in a pathogen-free rabbit developed in Canada and are trying to save money or find an investor to build a newer, better quality facility to raise pathogen-free rabbits. (Tr. 239-246, 256, 289.)
Craig Lesser makes the overall business decisions, while Marilyn Lesser, his wife, handles the rabbit breeding and directs the personnel.
Until 1989, the Lessers had no apparent problems with inspectors from APHIS' Veterinary Services. In a May 1989 letter from APHIS' Sector Supervisor, the Lessers were informed that a new veterinarian, Dr. Elizabeth Goldentyer, had been appointed to inspect facilities in their area, and commended them on "the excellent working relationship Veterinary Services has enjoyed while working with you." (RX-5.) The inspector prior to Goldentyer was Donald Leonard, an Animal Health Technician, who had been conducting inspections of the Lesser rabbitry since 1976. Although Leonard testified that the Lessers had never refused to allow him to conduct an inspection, a July 1982 letter to Leonard from APHIS' area veterinarian in charge, A.R. McLaughlin, indicated that on one occasion Leonard had been refused inspection by Craig Lesser because he had worn soiled coveralls. McLaughlin admonished Leonard that "a separate pair of clean overalls must be worn for each Animal Welfare inspection. We cannot afford to be the source of introduction of disease into a breeding colony, particularly one such as Lesser's, which furnishes disease-free animals for research." (RX-6.)
**3 Leonard also testified that the Lessers had a "good facility" and that they had usually corrected any deficiencies he found. (Tr. 183-184.) However, a deficiency found in September 1986 was not corrected. Leonard's inspection report at the time states: "Interior Surfaces - walls and cracks in floor are not substantially impervious to moisture and may not be readily sanitized, because of large cracks in concrete floor and bare wood walls. This is in the north holding facility. Corrective measure - fix and repair and seal wood." The Lessers tried to acquire a newer and larger facility in 1988, but their plans were frustrated by animal rights activists. (Tr. 246.) The deficiency in any event had still not been corrected at the time of Leonard's last inspection of the facility on February 17, 1989. (RX-4.)
*158 Approximately three months later, on May 4, 1989, Goldentyer, the new inspector, accompanied by another APHIS veterinarian, Richard Bertz, visited the Lesser rabbitry. Marilyn Lesser was present at the facility and, after asking Goldentyer and Bertz to wear surgical masks, allowed them to make their inspection. Goldentyer said that, before beginning the inspection, she disinfected her boots and put on clean coveralls.
Goldentyer testified that she removed eight to ten rabbits from their cages to weigh them in order to determine if the cages met minimum space requirements. After measuring the cages she determined that the cages were too small for the rabbits. Goldentyer further noted that there was a build-up of animal waste in the troughs under the cages, that the cleaning scoop was not working properly, that a bag of rabbit chow was left open, that the lighting was insufficient, and that there was a build-up of hair and feces in the air vents in the cages. As for the condition of the rabbits she saw, she said that none were sick or diseased. (Tr. 85-86.)
Goldentyer also noted that the facility's interior beams were unsealed wood and that the concrete floor was cracked, which were deficiencies that Leonard had cited. She said that such porous surfaces are difficult to clean and sanitize and that bacteria tend to breed in these conditions. Goldentyer recorded her findings on her inspection report. (CX-1.) She gave a copy to Marilyn Lesser and discussed it with her.
Goldentyer returned to the Lesser rabbitry for reinspection five times later, between September 1989 and May 1990. There was no inspection on any of these occasions. On the first attempted reinspection, on September 22, 1989, Marilyn Lesser refused inspection after phoning Craig Lesser, who was out of town. Goldentyer returned on December 14, 1989, and was told by an employee that both Lessers were out of town. The employee said she was not authorized to allow an inspection. The next two attempted inspections were on February 20 and May 4, 1990. Marilyn Lesser was present on both occasions, but refused to allow an inspection because her husband, who was out of town on business, told her that he was to be present during inspections. (Tr. 36-51, 347.)
**4 In January 1990, Craig Lesser had written to Franklin Kriewald, an APHIS supervisor, stating that the rabbitry could be inspected any time that he was present, and that he was looking for a manager to be present for inspections when he was not present. Lesser also asked that inspectors not inspect his facility within 72 hours of their visit to another animal facility because of his concern about disease transmissions. (CX-8.) Kriewald promptly replied with a letter to Lesser that inspectors have the authority to conduct unannounced, *159 warrantless searches and that the refusal to allow an inspection is a violation of the Animal Welfare Act and grounds for prosecution. Kriewald also advised Lesser that inspectors would "take every precaution to protect you and your animals from disease transmission." (CX-9.)
On August 24, 1990, Goldentyer and Ellen Magid, another veterinarian, arrived at the facility around 2:00 p.m. to conduct an inspection. Craig Lesser was present and met with them in his office. Goldentyer said that Lesser began the meeting by asking her where she and Magid had been that day and the type of facilities they had inspected. She said he seemed concerned about disease transmission. Goldentyer responded that they had not inspected any rabbits in the previous few days and that they were willing to take any reasonable precaution to prevent the transmission of disease. Lesser then began talking about the inspection process and about unannounced inspections. He said he would allow an inspection, but he would not allow them to touch the rabbits, would not allow them to go into certain rooms, and would not allow them to write down "picky" problems. Lesser accused Goldentyer of being in league with PETA, an animal rights activist group, that he said was trying to shut him down. (Tr. 55-60, 100.)
Goldentyer responded that she was not in league with any animal activist group and that she could not conduct an inspection with the limitations he wanted to impose and could not allow him to determine what to record in her inspection report. The exchange between Goldentyer and Lesser was apparently somewhat heated and Goldentyer and Magid left without conducting an inspection. (Tr. 60-61, 282-285.)
Craig Lesser testified that, in regard to sanitation, the facility is vacuumed daily and washed and scrubbed with soap and disinfectant every 30 days. As for the lighting, he testified that the facility has 100-watt light bulbs every five feet which give off 1,175 illumines at three foot level. He admitted that there had been an overcrowding problem and that other deficiencies cited by Goldentyer were due to an experiment in hiring handicapped people who were not able to follow directions without a "considerable amount of supervision." The problems noted by Goldentyer had been or were to be corrected. (Tr. 265, 276- 280; answer to complaint.)
Lesser also testified that he had told his wife not to allow any unannounced inspections when he was not at the facility because of his concern about disease transmission. He stated that there was a serious outbreak of infection in 1977. As for his conduct at the meeting with Goldentyer and Magid in August 1990, Lesser said he did not receive assurances from them about wearing protective clothing. He also said he was concerned about animal *160 rights activists obtaining their inspection reports under the Freedom of Information Act. (Tr. 280, 284-285, 310.)
**5 Both Craig and Marilyn Lesser said they would not refuse to allow inspections in the future. (Tr. 324, 354.)
Section 2.100(a) of the Regulations, 9 C.F.R. s 2.100(a), states that "each dealer . . . shall comply in all respects with the regulations set forth in part 2 and the standards set forth in part 3 of this subchapter for the humane handling, care, treatment, housing and transportation of animals." The Act, 7 U.S.C. s 2149(b), provides for a penalty of up to $2,500 for each violation of the Act, regulations or standards.
The complaint alleges, and I find, that respondents violated section 3.50(c) of the standards, which provides that animal food shall be protected against infestation and contamination by vermin, by allowing a bag of rabbit chow to remain open; violated section 3.56(a) of the standards, which provides that enclosures shall be kept reasonably free of excreta and hair, by allowing a build-up of feces and hair in the cages' vent openings; and violated section 3.50(d) of the standards, which provides that animal waste shall be removed and disposed of, by failing to clean the troughs under the cages and by having scoops that did not work properly.
The principal purpose of the Animal Welfare Act is to provide for the humane care of animals. It is not shown that the foregoing violations actually adversely affected the rabbits. Indeed, Goldentyer testified that the rabbits were neither sick nor diseased. Moreover, the deficiency apparently stemmed, at least in part, from the commendable attempt by the Lessers to employ handicapped persons. . . .
The complaint alleges that respondents violated section 3.51(c) because of insufficient lighting. This section requires that lighting be sufficient to permit routine inspection and cleaning. It is otherwise not precise as to the amount of illumination required. Goldentyer testified that the lighting was such that she "couldn't tell if there was an animal in that cage or not." (Tr. 28.) Craig Lesser testified that the facility has 100-watt light bulbs every five feet which would seem to provide adequate lighting. However, there were apparently areas of the facility that were not illuminated sufficiently for Goldentyer to make an inspection. I find that there was insufficient lighting for at least some parts of the facility and to the extent there is some insufficient lighting, I find that the Lessers violated section 3.51(c). As they have not alleged that *161 they have corrected this deficiency, I find that a penalty of $250 is appropriate.
The complaint alleges, and I find, that the cages were not of the required size in violation of the minimum space requirements contained in section 3.53(b) of the standards. Goldentyer's report fully documents her findings and the Lessers also admit that an overcrowding condition had existed. Although they say that the problem has been alleviated, the rabbits nevertheless had to endure overcrowding for a period of time. A penalty of $500 is imposed for this violation.
**6 The complaint alleges that the wall beams were made of unsealed wood and that the concrete floor was cracked in violation of section 3.51(d) of the standards which provide that interior surfaces must be "constructed and maintained so that they are substantially impervious to moisture and may be readily sanitized." Goldentyer's testimony was not contradicted by the Lessers that such porous surfaces can constitute a breeding ground for germs. However, they said that they regularly wash and sanitize these surfaces. In their answer to the complaint, the Lessers also state that they have been trying to correct the deficiency and that they have contacted a bank and an investor for purposes of raising funds to correct the problem.
The degree of the seriousness of the violation is not indicated, although in his April 1987 report Leonard suggests that it is "minor." (RX-4.) Nevertheless, unlike the other deficiencies noted above, this was a recurrent violation. It is also rather inconsistent for Craig Lesser, on the one hand, to proclaim the theoretical dangers of disease transmission by inspectors, while, on the other hand, allowing a condition to exist that appears to constitute a more immediate threat to the health of his rabbits. Still, the Lessers acknowledge the problem and are trying to correct it.
In these circumstances, a $1,000 penalty is imposed for this violation.
Finally, the complaint alleges that the Lessers unlawfully refused to allow inspections of their facility. On three occasions Marilyn Lesser would not allow an inspection because Craig Lesser was not present, on another occasion an employee would not allow an inspection because neither Lesser was present, and then, in August 1990, Craig Lesser in effect refused to allow an inspection unless it was conducted on his terms.
Section [16(a)] of the Act [, 7 U.S.C. s 2146(a),] provides that:
The Secretary shall make such investigations or inspections as he deems necessary to determine whether any dealer, exhibitor, intermediate handler, [or] carrier . . . has violated or is violating any provision of this chapter or any regulation or standard issued thereunder. . . .
*162 Section 2.126 of the Regulations, 9 C.F.R. s 2.126, provides that:
(a) Each dealer, exhibitor, intermediate handler, or carrier, shall, during business hours, allow APHIS officials:
(1) To enter its place of business;
(2) To examine records required to be kept by the Act and the regulations in this part;
(3) To make copies of the records;
(4) To inspect and photograph the facilities, property and animals, as the APHIS officials consider necessary to enforce the provisions of the Act, the regulations and the standards in this subchapter; and
(5) To document, by the taking of photographs and other means, conditions and areas of noncompliance.
The Lessers' defense is that Craig Lesser had decided that there were to be no inspections unless he was present, to insure that inspectors took proper precautions to prevent the transmission of disease. However, whether Craig Lesser was present or not, he had to designate someone to allow inspections in his absence. The Secretary has held "during normal business hours, some employee or agent has to be available at each facility operated by a dealer, to give full and ready access to it and its records, for any unannounced APHIS inspection." S.S. Farms Linn County, Inc., et al., 50 Agric. Dec. 476, 492 (1991) [, appeal docketed, No. 91 70169 (9th Cir. Mar. 8, 1991)].
**7 The Lessers therefore violated the Regulations on the four occasions when they failed to designate or make available an employee or agent to provide the inspectors with access to their facility. In S.S. Farms Linn County, Inc., supra, at 492-493, it was found that a $500 fine was appropriate for the failure to have a designated person present which fine was increased to $1,000 for the second violation. I find that such penalties are appropriate here. Accordingly, the penalty is $500 for the first violation, $1,000 for the second, $1,500 for the third, and $2,000 for the fourth.
The fifth alleged refusal to allow an inspection occurred in August 1990. Craig Lesser denied that he refused to allow an inspection on this occasion, claiming that he was only concerned about the transmission of disease. However, Goldentyer testified credibly that she was willing to take all reasonable precautions to prevent the transmission of disease and her testimony is corroborated by her May 1989 inspection when she wore clean coveralls, disinfected her boots, and, at Marilyn Lesser's request, wore a face mask. Marilyn Lesser, in her testimony, did not fault Goldentyer's inspection *163 procedure. Goldentyer further responded to Craig Lesser's inquiry about other facilities that she had inspected by saying that she had not been to any other facility that day.
Craig Lesser could certainly be legitimately concerned about his rabbits contracting disease from outsiders -- the economic loss could indeed be devastating. Based on his experience with Leonard's attempted inspection in 1982, who risked infecting the rabbits by wearing dirty overalls, it was not unreasonable for Lesser to seek reassurances from Goldentyer, a new inspector, that she would take proper precautions when conducting her inspection. Goldentyer, however, did all she could to allay his concerns and still perform her functions. She also rejected his insinuation that she was in league with militant animal activists, and the Lessers offered no evidence whatsoever that she had in the past or would in the future improperly divulge any information she obtained during her inspection. Craig Lesser thus had no reasonable basis for objecting to unannounced inspections by Goldentyer or placing limitations on her inspection. By attempting to restrict her inspection, he, in effect, was refusing to allow her to conduct an inspection. He accordingly violated section 2.126 of the Regulations.
The Lessers appear to object only to unannounced inspections, but apparently do not object to APHIS inspectors conducting warrantless inspections.
There is authority for the proposition that warrantless searches, including administrative inspections of business premises, are generally considered unreasonable under the Fourth Amendment. Marshall v. Barlow's Inc., 436 U.S. 307, 312 (1978). In order for an agency to conduct a warrantless inspection, the agency has the burden of proving that the business involved is in a "closely regulated" industry "long subject to close supervision and inspection." Colonnade [Catering] Corp. v. United States, 397 U.S. 72, 74, 77 (1970). Whether the government must have a warrant to inspect even a licensed business such as the Lessers is a matter to be resolved "on a case-by-case basis under the general Fourth Amendment standard of reasonableness." See v. City of Seattle, 387 U.S. 541, 546 (1967).
**8 However, as the issue of warrantless searches was not raised, it need not be decided. [FN1] It is therefore presumed for purposes of this proceeding that APHIS did not need a search warrant before inspecting the Lessers' facility.
*164 As it is found that Craig Lesser improperly refused to allow an inspection in August 1990, it is found that he violated section 2.126 of the Regulations. Since this was the fifth recurrent violation of this Regulation, the penalty is $2,500.
In addition to monetary penalties, complainant asks for a cease and desist order and that the Lessers' license be suspended. A suspension is an extreme penalty. It can effectively jeopardize a person's livelihood by putting him or her out of business. The imposition of such a drastic penalty must therefore be carefully considered.
In S.S. Farms Linn County, Inc., supra, the license of the dealer in that case was suspended for twelve months. However, unlike here, the dealer was found to be "indifferent to the distress and shock experienced by the animals he buys and sells" by, among other things, putting cats in bags and not providing care for sick dogs. He also not only refused inspections, but screamed at and physically threatened inspectors.
On the other hand, in SEMA, Inc., 49 Agric Dec. 176 (1990), no suspension was imposed on a dealer who had denied an inspector access to his facility.
These cases illustrate the Secretary's compliance with the Congressional mandate in section  of the Animal Welfare Act [, 7 U.S.C. s 2149,] that in determining the penalty to impose, "The Secretary shall give due consideration to the appropriateness of the penalty with respect to the size of the business of the person involved, the gravity of the violation, the person's good faith, and the history of previous violations." In other words, the appropriate penalty takes into consideration the particular circumstances of each case. [FN2]
In this case, the Lessers have a fairly large volume of business (selling up to 20,000 rabbits a year). However, they still lack the capital needed to replace their aging, difficult-to-sanitize facility which they appear in good faith to be trying to do. There is no evidence that they treat their animals inhumanely and they promptly corrected most of the deficiencies found by inspectors.
Craig Lesser's run-in with inspectors stems from his concern about disease transmission and about militant animal rights activists obtaining information that they might use to harass him (such groups had apparently already frustrated his attempt at acquiring a replacement facility). However, his *165 insistence that inspections be conducted on his terms was nevertheless unwarranted. The inspectors had agreed to take reasonable precautions to prevent the transmission of disease and there is no evidence that they had or would divulge information to animal rights groups. The inspectors, moreover, had the authority to decide what information to record on their inspection reports since the successful enforcement of the Animal Welfare Act is dependent on APHIS inspectors having the discretion to select their methods of inspection and the way in which they document their observations. JoEtta L. Anesi, 44 Agric. Dec. 1840, 1846 (1985) [, appeal dismissed, 786 F.2d 1168 (8th Cir.) (unpublished), cert. denied, 476 U.S. 1108 (1986)].
**9 In January 1990, Craig Lesser had also been specifically warned that if he denied an inspection he would be subject to prosecution. Despite this clear warning he effectively prevented an inspection from taking place later that year by making excessive demands for the conditions under which an inspection would take place.
In view of his conduct, a suspension is appropriate as a warning to him and to others that the work of inspectors is not to be impeded. As for the length of the suspension, a significant factor to consider -- and one mandated by Congress -- is that prior to this time the Lessers had had a long history of compliance with inspectors and in 1989 they had been commended by APHIS for their "excellent relationship" with APHIS. The Lessers had also stated at the hearing that they would in the future cooperate with inspectors. Considering all the circumstances in this case, I find that a 30-day suspension of the Lessers' license is appropriate.
Findings of Fact
1. Respondents Craig Lesser and Marilyn Lesser are individuals doing business as LSR Industries, Inc., and Lesser's Rabbitry, whose mailing address is 18403 Washington Avenue, Union Grove, Wisconsin 53182.
2. At all times material herein, respondents were licensed and operating as dealers as defined in the Act and the Regulations.
3. LSR Industries, Inc., is a Wisconsin corporation.
4. On May 4, 1989, respondents failed to store supplies of food for rabbits so as to protect it against infestation or contamination by vermin.
5. On May 4, 1989, respondents failed to provide for the removal and disposal of animal wastes.
6. On May 4, 1989, respondents' facility did not have sufficient lighting to permit routine inspection.
*166 7. On May 4, 1989, respondents failed to maintain interior surfaces of indoor housing facilities for rabbits so as to be substantially impervious to moisture and be readily sanitized.
8. On May 4, 1989, respondents failed to provide adequate space for rabbits in primary enclosures.
9. On May 4, 1989, respondents failed to keep primary enclosures for rabbits clean and sanitized as required.
10. On September 22 and December 14, 1989, and on February 20 and May 4, 1990, respondents failed to have a designated employee or agent present to allow APHIS inspectors to conduct an investigation.
11. On August 24, 1990, respondents refused to allow APHIS to inspect their animals, facilities and records.
Conclusions of Law
1. On May 4, 1989, respondents violated section 2.100(a) of the Regulations and sections 3.50(c) and (d), 3.51(c) and (d), 3.53(b) and 3.56(a) and (b) of the Standards.
2. On September 22 and December 14, 1989, and on February 20 and May 4, 1990, respondents wilfully violated section 16 of the Act, 7 U.S.C. s 2146, and section 2.126 of the Regulations, 9 C.F.R. s 2.126, by failing to designate an employee or agent to allow APHIS to inspect their animals, facilities and records, and on August 24, 1990, respondents wilfully violated section 16 of the Act, 7 U.S.C. s 2146, and section 2.126 of the Regulations, 9 C.F.R. s 2.126, by refusing to allow APHIS to inspect their animals, facilities and records.
ADDITIONAL CONCLUSIONS BY THE JUDICIAL OFFICER
**10 Respondents argue on appeal that Complainant failed to meet its burden of proof, but there is much more than a preponderance of the evidence that Respondents violated the Act, regulations, and standards, as alleged, which is all that is required. [FN3] Respondents contend that the ALJ failed to make a credibility determination as to conflicting evidence relating to the August 24, *167 1990, inspection attempt, but the ALJ's discussion of this issue shows that he regarded Dr. Goldentyer's testimony as to this matter credible (Initial Decision at 10 11).
Respondents further contend that the ALJ erred in determining that Respondents willfully failed to permit inspections, but their conduct was in direct violation of the Act and regulations, and manifestly willful. "Refusing to permit inspection is obviously willful." Cox v. USDA, 925 F.2d 1102, 1105 (8th Cir. 1991). A violation is willful, within the meaning of the Administrative Procedure Act (5 U.S.C. s 558(c)), if a person carelessly disregards regulatory requirements. [FN4] Even under the stricter standard followed in some circuits, [FN5] Respondents' conduct would still be willful in view of their blatant disregard of the regulatory requirements as to permitting inspections.
Respondents contend that the Act and regulations are unconstitutional in view of the prohibition in the Fourth Amendment against unreasonable searches and seizures. They contend that, as a general rule, warrantless searches are unreasonable. However, Respondents failed to raise this issue in their Answer, at the hearing, or in their briefs filed before the ALJ. (The ALJ mentioned the issue sua sponte in his Initial Decision.) It is too late for Respondents to raise the issue for the first time on appeal to the Judicial Officer. [FN6] Although an agency cannot declare a statute unconstitutional, *168 constitutional issues can (and should) be raised before the ALJ. Robinson v. United States, 718 F.2d 336, 337 38 (10th Cir. 1983). If the issue had been raised before the ALJ, I would have held that the Fourth Amendment is not violated by warrantless inspections under this regulatory statute for the reasons stated in Complainant's comprehensive Appeal Brief as to this issue. See, e.g., Wayne Cusimano, Inc. v. Block, 692 F.2d 1025, 1027 29 (5th Cir. 1982); In re Anesi, 44 Agric. Dec. 1840, 1847 (1985), appeal dismissed, 786 F.2d 1168 (8th Cir.) (unpublished), cert. denied, 476 U.S. 1108 (1986).
Finally, Respondents contend that the sanctions are too severe. The Department's sanction policy is stated in In re S.S. Farms Linn County, Inc., 50 Agric. Dec. 476, 497 (1991), appeal docketed, No. 91 70169 (9th Cir. Mar. 8, 1991), as follows:
It is appropriate to state expressly the practice that has been followed by the Judicial Officer in recent cases, viz., that reliance will no longer be placed on the "severe" sanction policy set forth in many prior decisions, e.g., In re Spencer Livestock Comm'n Co., 46 Agric. Dec. 268, 435 62 (1987), aff'd on other grounds, 841 F.2d 1451 (9th Cir. 1988). Rather, the sanction in each case will be determined by examining the nature of the violations in relation to the remedial purposes of the regulatory statute involved, along with all relevant circumstances, always giving appropriate weight to the recommendations of the administrative officials charged with the responsibility for achieving the congressional purpose.
**11 I agree with the ALJ's discussion of the sanction, except for his failure to assess civil penalties for the sanitation and waste violations. As to these violations, the ALJ stated (Initial Decision at 7):
The complaint alleges, and I find, that respondents violated section 3.50(c) of the standards, which provides that animal food shall be protected against infestation and contamination by vermin, by allowing a bag of rabbit chow to remain open; violated section 3.56(a) of the standards, which provides that enclosures shall be kept reasonably free *169 of excreta and hair, by allowing a build-up of feces and hair in the cages' vent openings; and violated section 3.50(d) of the standards, which provides that animal waste shall be removed and disposed of, by failing to clean the troughs under the cages and by having scoops that did not work properly.
The principal purpose of the Animal Welfare Act is to provide for the humane care of animals. It is not shown that the foregoing violations actually adversely affected the rabbits. Indeed, Goldentyer testified that the rabbits were neither sick nor diseased. Moreover, the deficiency apparently stemmed, at least in part, from the commendable attempt by the Lessers to employ handicapped persons. They corrected the deficiencies after they were brought to their attention. In these circumstances, I do not find that a penalty is appropriate for these violations.
I agree with Complainant that additional civil penalties of $500 are appropriate for the sanitation and waste violations. There is no requirement that animals be diseased or dead in order to establish a violation of these standards or impose penalties for their violations. It is likely that lack of sanitation would adversely affect the Lessers' rabbits. Dr. Goldentyer testified that the waste problem could lead to vermin infestation and create disease hazards, and that the build-up of feces and hair in the cages could create a ventilation hazard (Tr. 27 28, 118). Although Respondents claim to have corrected the deficiencies, they have refused inspections since 1989, so the Department has not had an opportunity to determine whether complete corrective action has been taken. In any event, I agree with Complainant that $500 in civil penalties should be assessed for these violations.
For the foregoing reasons, the following Order should be issued.
1. Respondents, Craig Lesser and Marilyn S. Lesser, are jointly and severally assessed a civil penalty of $9,750, to be paid, within 120 days of service of this Order on Respondents, to the Treasurer of the United States, and forwarded to Colleen A. Carroll, United States Department of Agriculture, Office of the General Counsel, Room 2014, South Building, Washington, D.C. 20250-1400.
2. Respondent Craig Lesser's and Respondent Marilyn S. Lesser's license *170 under the Animal Welfare Act is hereby suspended for 30 days and thereafter until said Respondents' facility is found by APHIS to be in compliance with the Act and the regulations and standards thereunder.
**12 3. Respondents, their agents and employees, successors and assigns, directly or indirectly through any corporate or other device, shall cease and desist from violating the Act and the regulations and standards thereunder, and in particular shall cease and desist from:
(a) interfering with or refusing APHIS inspections of their facilities; and
(b) failing to maintain their facilities in accordance with the standards involving housing, sanitation, cleaning, ventilation, storage of food and bedding, and lighting.
The suspension provision shall become effective on the 35th day after service of this Order on the Respondents. The cease and desist provisions shall become effective on the day after service of this Order on the Respondents.
FNa1 The position of Judicial Officer was established pursuant to the Act of April 4, 1940 (7 U.S.C. §§ 450c-450g), and Reorganization Plan No. 2 of 1953, 18 Fed. Reg. 3219 (1953), reprinted in 5 U.S.C. app. at 1280 (1988). The Department's present Judicial Officer was appointed in January 1971, having been involved with the Department's regulatory programs since 1949 (including 3 years' trial litigation; 10 years' appellate litigation relating to appeals from the decisions of the prior Judicial Officer; and 8 years as administrator of the Packers and Stockyards Act regulatory program).
FN1 It was raised only in the context of the Lessers claiming that Goldentyer allegedly made a threat to get a search warrant. (Tr. 333.)
FN2 Consideration is also given to complainant's recommended penalty to the extent the recommendation takes into account the considerations mandated by Congress.
FN3 See Herman & MacLean v. Huddleston, 459 U.S. 375, 387-92 (1983); Steadman v. SEC, 450 U.S. 91, 92-104 (1981); In re Rowland, 40 Agric. Dec. 1934, 1941 n.5 (1981), aff'd, 713 F.2d 179 (6th Cir. 1983); In re Gold Bell-I&S Jersey Farms, Inc., 37 Agric. Dec. 1336, 1346 (1978), aff'd, No. 78-3134 (D.N.J. May 25, 1979), aff'd mem., 614 F.2d 770 (3d Cir. 1980).
FN4 See Butz v. Glover Livestock Comm'n Co., 411 U.S. 182, 186 88 (1973); Cox v. USDA, 925 F.2d 1102, 1105 (8th Cir.), cert. denied, 112 S.Ct. 178 (1991); Finer Foods Sales Co. v. Block, 708 F.2d 774, 778 (D.C. Cir. 1983); American Fruit Purveyors, Inc. v. United States, 630 F.2d 370, 374 (5th Cir. 1980) (per curiam), cert. denied, 450 U.S. 997 (1981); George Steinberg & Son, Inc. v. Butz, 491 F.2d 988, 994 (2d Cir.), cert. denied, 419 U.S. 830 (1974); Goodman v. Benson, 286 F.2d 896, 900 (7th Cir. 1961); Eastern Produce Co. v. Benson, 278 F.2d 606, 609 (3d Cir. 1960).
FN5 Capital Produce Co. v. United States, 930 F.2d 1077, 1079 81 (4th Cir. 1991); Capitol Packing Co. v. United States, 350 F.2d 67, 78 79 (10th Cir. 1965). See also Parchman v. USDA, 852 F.2d 858, 864 65 (6th Cir. 1988).
FN6 In re Hickey, 47 Agric. Dec. 840, 851 (1988), aff'd, 878 F.2d 385 (9th Cir. 1989) (Table) (text in WESTLAW), printed in 48 Agric. Dec. 107 (1989); In re Daul, 45 Agric. Dec. 556, 565 (1986); In re Palmer, 44 Agric. Dec. 248, 253 (1985); In re Evans Potato Co., 42 Agric. Dec. 408, 409-10 (1983); In re Robinson, 42 Agric. Dec. 7 (1983), aff'd, 718 F.2d 336 (10th Cir. 1983); In re Winger, 38 Agric. Dec. 182, 187 (1979), appeal dismissed, No. 79-C-126 (W.D. Wis. June 1979); In re Lamers Dairy, Inc., 36 Agric. Dec. 265, 289 (1977), aff'd sub nom. Lamers Dairy, Inc. v. Bergland, No. 77-C-173 (E.D. Wis. Sept. 28, 1977), printed in 36 Agric. Dec. 1642, aff'd, 607 F.2d 1007 (7th Cir. 1979), cert. denied, 444 U.S. 1077 (1980).